FOR IMMEDIATE RELEASE
OCTOBER 3, 2017
HALIFAX – The Adult Capacity and Decision-Making Act introduced in the Nova Scotia Assembly Monday falls far short of its stated aim to “promote the dignity, autonomy, independence, social inclusion and freedom of decision-making of adults” who have intellectual and other disabilities. Minister of Justice Mark Furey assures that the Bill finds the right balance between autonomy and protection. However, our closer look finds an alarming imbalance.
The Bill empowers the courts to remove an adult’s right to make the most basic decisions. For example, where and with whom the adult can live or have a relationship, about health and personal care issues, whether the adult can participate in social and recreational activities, whether the adult can be employed or participate in educational training, and whether they can have a bank account. There is no requirement to exhaust options before this drastic measure.
In striking down the Incompetent Persons Act last year, the Nova Scotia Supreme Court called on the government to address the human rights violations in the law. The draft Bill neither meets the Court’s test nor the requirement in the UN Convention on the Rights of Persons with Disabilities, ratified by Canada in 2010, to ensure people have access to the supports and accommodations they need to enhance and exercise their decision-making capacity.
What else could the Bill do to ensure people can maximize their decision-making capacity?
1. Recognize a duty to provide reasonable accommodations in the decision-making process – for physicians, financial institutions, service providers, and capacity assessors. The Ontario Human Rights Commission recognizes the duty as does international law.
2. Guarantee access to alternatives as a first response where a person’s decision-making capacity is questioned by others. This can be done by providing access to rights advisors – whether in the health care system or through community agencies.
3. Designate community agencies to provide independent advocacy, rights advice, communication intermediaries and other accommodations, and support network development. This would leverage existing services, but go a long way to protect rights.
4. Recognize supported decision making as a valid legal alternative – where a person can have their representative assist in making decisions, without being authorized to have power over the person’s decision.
5. Require evidence that reasonable accommodations and alternatives have been exhausted prior to the court appointing a representative to make decisions.
But on the bottom paragraph, please change to: The Nova Scotia Association for Community Living and the Canadian Association for Community Living call on the government to make these changes. Carmel French, Nova Scotia ACL’s President states, “People were never protected by removing their rights. We have a chance to get it right. It’s support people need, not more rights violations that deny a person’s power over their own lives. Our five-point plan would get us there.”
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Carmel French, NSACL President, 902-476-9580
Krista Carr, CACL Executive Vice-President, 506-474-3528